BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR. SADHNA SHANKER, MEMBER

For the Appellant                Mr D Abhinav Rao, Advocate with

                                       Mr Devadipta Das, Advocate  

For the Respondent             Mr Sidharth Sethi and Mr Avinash Das

                                       Advocate for R 1

                                       Mr K S Rama Rao, Advocates for R 2

ORDER

PER SUBHASH CHANDRA

1.      This appeal under Section 12 of the Consumer Protection Act, 1986 (in short, the “Act”) is directed against the order dated 19.11.2012 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in Complaint no. 20 of 2011 disallowing the complaint. 

2.     We have heard the learned counsel for the parties and perused the records. The delay of one day in the filing of the appeal was condoned in the interest of justice.

3.     The relevant facts of the case, in brief, are that the appellant purchased a Mercedes Benz E280CDI car on 18.06.2008 manufactured by respondent no. 1 through respondent no. 2 (its dealer) for a consideration of Rs 53,00,000/-. The wipers of the car were replaced on 23.07.2009 by respondent no. 2 on the complaint of the appellant. A steering wheel issue was reported by the appellant on 01.08.2009 and respondent no. 2 arranged for personnel of respondent no. 1 to replace the steering wheel assembly on 28.08.2009. On 09.01.2010 the vehicle met with an accident when it hit the embankment on the right while swerving to avoid an on-coming vehicle. The vehicle suffered severe damage to the right-side fender and its entire front section was damaged along with engine parts. The front air bags did not deploy, and the appellant suffered injuries on the head, neck and face. The vehicle was handed over to the respondent no. 2 with whom it remained from 09.01.2010 till 09.02.2010. Appellant reminded respondents to provide reasons for the non-deployment of air bags. Respondent 2 estimated cost of repairs including spare parts, at approximately Rs 22 lakhs. On 20.01.2010 appellant issued a Legal Notice to respondents alleging “manufacturing defect” in the car due to which air bags did not deploy despite a major collision. Thereafter, the vehicle was sold for Rs 16,50,000/- on an ‘as-is-where-is’ basis and Consumer Complaint No. 20 of 2010 was filed before the State Commission seeking compensation of Rs 30,55,000/- for reimbursement of loss and additional cost for purchase of a new vehicle, Rs 50,000/- for medical expenses, Rs.15,00,000/- for mental agony and Rs 10,00,000/- for general and special damages amounting to a total of Rs 56,05,000/-. This claim was subsequently revised to Rs 25,50,000/- as the claim for Rs 35,55,000/- relating to loss of vehicle was deleted on 09.11.2012. The complaint was decided on contest on 29.11.2010 dismissing the complaint which order is impugned before us.

4.      On behalf of the appellant it was argued that the non-deployment of airbags was a manufacturing defect which was in addition to defects with the wipers and steering wheel soon after the vehicle was purchased. It was contended that the air bags were dislodged while replacing the steering wheel assembly on 28.08.2009. Reliance was placed on the judgment of the Hon’ble Supreme Court in Hyundai Motor India Ltd. Vs. Shailendra Bhatnagar, Civil Appeal No. 3001 of 2022 dated 21.04.2022 which held that non-deployment of air bags amounted to a manufacturing defect. It was also contended that even though the vehicle was with the respondents from 09.01.2010 to 09.02.2010, the vehicle was not inspected to ascertain the reason for the air bags not getting deployed. It was also contended that the estimate for repairs of approximately Rs 22 lakhs prepared by the respondents indicated that the damage to the car was extensive. It was further argued that the State Commission had erred in concluding that the seat belt had not been worn and therefore the order was perverse. It was therefore prayed that the impugned order be set aside. The claim of manufacturing defect was, however, withdrawn on 09.11.2012 as not pressed.

5.      Per contra, the contention of the respondents is that the State Commission had rightly dismissed the complaint as no manufacturing defect had been established and no case for deficiency in service on part of the respondents made out. It was submitted that after the repairs in August 2009, the vehicle had been driven for nearly 3,000 kms without complaints or defects being reported. It was averred that the accident was due to rash and negligent driving as per the FIR and the report of the Magistrate and not due to any defect in the steering wheel. It was also submitted that the vehicle should have been allowed to be inspected before selling it to a third party which prevented the vehicle’s inspection under Section 13(1)(c) of the Act to establish any ‘manufacturing defect’, the burden of proof of which was on the appellant. It was submitted that the injuries suffered by the appellant were, in fact, minimised due to the intrinsic design of the vehicle which absorbed the impact of the accident. It was also submitted that the evidence of dental treatment submitted was dated prior to the accident and could not be attributed to the accident. It was argued that the air bags did not deploy since the seat belt was not worn which, as per the Owner’s Manual, was required as the primary restraint mechanism. It was also argued that the Manual made it clear that the Electronic Triggering  Device (ETR) would have triggered at the time of the accident resulting in tightening of the seat belt to provide additional protection to the passenger’s head at the moment of accident which failed to happen as the seat belt had not been worn. Reliance was placed on the affidavit of the Service Manager of respondent no. 2 who stated that as per inspection of the vehicle after the accident, the seat belt was not found to have been fastened. Respondent also relied upon the fact that no evidence of the co-occupant of the vehicle was filed by the appellant. It was contended that in the absence of any expert opinion being filed, as required under Section 13(1)(c) of the Act, ‘manufacturing defect’ could not be asserted. It was also stated that the diagnostic test report dated 14.08.2009 conducted by the dealer at the time of repairs had indicated all Control Units and Airbags were functioning as per design. It was also submitted that the vehicle had been sold without providing an opportunity for inspection to respondents. It was also argued that the ratio in Shailendra Bhatnagar (supra) did not apply in the instant case since the facts of the cases were distinguishable and the Hon’ble Supreme Court had decided not to revisit the facts in that case in view of the fora below having returned concurrent findings on facts. Respondent relied upon the ration in Desh Bandhu Gupta Vs. Indian Airlines Ltd., 2001 SCC Online NCDRC 2 which held that for the principle of res ipsa loquitor to apply, the facts on record have to speak for themselves which was not the case in the present matter.  Reliance was placed on this Commission’s judgments in Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad, III (2010) CPJ 130 (NC); Maruti Udyog Ltd. Vs. Hasmukh Lakshmichand, III (2009) CPJ 229 (NC); Chandreshwar Kumar Vs. Tata Engineering Locomotive Ltd., I (2010) CPJ 235 (NC); Classic Automobiles Vs. Lila Nand Mishra & Ors., 2010 (2) CPC 67; Mercedes Benz India Pvt. Ltd. Vs. Smt Revathi Giri, FA No. 766 of 2021 and Mercedes Benz India Pvt. Ltd. Vs. Saboo Industries & Anr., RP No. 3014 of 2012.

6.      The State Commission in Complaint No. 20 of 2010 has held that in view of the memo dated 09.11.2012 filed by the appellant, the claim of a ‘manufacturing defect’ was not considered as it was not pressed. However, it was noted that no complaint had been lodged with regard to any defect or standard of performance by the appellant with the respondents even after driving the vehicle for nearly 3,000 kms till the date of the accident. It was also noted that the FIR clearly indicated that the accident occurred due to rash and negligent driving by the complainant. Further, it was noted that the complainant ought to have waited for an inspection of the vehicle before selling it to a third party which denied the respondent the opportunity to inspect the vehicle. The State Commission also recorded that the Surveyor’s Report had not been brought on record. The affidavit of the Service Manager of respondent no. 2 was considered that the air bags did not deploy in view of the seat belt not having been used. It was also held that manufacturing defect had not been established by the appellant to support the contention that the air bags failed to deploy for that reason.

7.      From the foregoing it is manifest that the impugned order is well reasoned and detailed. The appellant’s case that the air bags failed to deploy due to a manufacturing defect in the vehicle has not been established through any Expert Opinion as required under Section 13(1)(c) of the Act. On the contrary, there is evidence by way of affidavit brought on record by the respondent that the seat belt had not been used which has also not been controverted.  As per the Owner’s Manual, the seat belt is required to be fastened for the air bags to deploy in case of an accident. As per the affidavit of the Service Manager of respondent no.2, the belt was not fastened. This evidence is not controverted. The cause of accident, as per the report of the Police, was due to rash and negligent driving and therefore the contention of the appellant that the air bags failed to deploy due to a manufacturing defect in the vehicle cannot be sustained. Reliance of the appellant on the ratio based on the principle of res ipsa loquitor laid down by the Hon’ble Supreme Court in Shailendra Bhatnagar (supra) cannot be considered in light of the arguments of the respondent relying upon Desh Bandhu Gupta (supra) in view of the facts being distinct as discussed above. 

8.      In view of the foregoing, this first appeal is liable to fail. Accordingly, the appeal is disallowed, and the order of the State Commission is upheld.

9.      There shall be no order as to costs. Pending IAs, if any, stand disposed of with this order.